Law Commons^™

Reflection, Reality, And A Real Audience: Ideas From The Clinic, Dana M. Malkus

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For a variety of reasons too numerous and complex to recount here, law teachers are increasingly expected to provide law students with more feedback and assessment. This is especially true for those who teach “doctrinal” courses. As a clinician, frequent feedback and assessment are common and essential parts of my teacher-student relationships. I believe the clinical model provides at least three simple—but important—lessons that can inform all law teaching.

Toward An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

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The dominant view in the antitrust field is that private enforcement cases, and especially class actions, accomplish little or nothing positive but, on the contrary, are counterproductive. Despite strongly worded convictions, that view has been premised on anecdotal, self-serving and insufficiently substantiated claims. Indeed, the authors' 2008 study of 40 private cases appears to constitute the only systematic effort to gather information about a significant number of private antitrust actions. That study generated a great deal of controversy, including questioning of our conclusions by high officials at the Department of Justice and by Professor Daniel Crane at the University of …

Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas

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This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for …

A Traditional And Textualist Analysis Of The Goals Of Antitrust: Efficiency, Preventing Theft From Consumers, And Consumer Choice, Robert H. Lande

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This Article ascertains the overall purpose of the antitrust statutes in two very different ways. First, it performs a traditional analysis of the legislative history of the antitrust laws by analyzing relevant legislative debates and committee reports. Second, it undertakes a textualist or "plain meaning" analysis of the purpose of the antitrust statutes, using Justice Scalia's methodology. It does this by analyzing the meaning of key terms as they were used in contemporary dictionaries, legal treatises, common law cases, and the earliest U.s. antitrust cases, and it does this in light of the history of the relevant times.

Both approaches …

The Wires Go To War: The U.S. Experiment With Government Ownership Of The Telephone System During World War I, Michael A. Janson, Christopher S. Yoo

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One of the most distinctive characteristics of the U.S. telephone system is that it has always been privately owned, in stark contrast to the pattern of government ownership followed by virtually every other nation. What is not widely known is how close the United States came to falling in line with the rest of the world. For the one-year period following July 31, 1918, the exigencies of World War I led the federal government to take over the U.S. telephone system. A close examination of this episode sheds new light into a number of current policy issues. The history confirms …

Striking The Right Balance: Investor And Consumer Protection In The New Financial Marketplace: Introduction, Lisa Fairfax, Arthur E. Wilmarth Jr

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On March 2, 2012, The George Washington University Law School's Center for Law, Economics & Finance and The George Washington Law Review jointly hosted a symposium entitled "Striking the Right Balance: Investor and Consumer Protection in the New Financial Marketplace."' The symposium focused on two principal topics. First, participants analyzed the impact of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") on investors and consumers in three areas of federal regulation-securities markets, derivatives markets, and consumer financial products. Second, the symposium evaluated the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley") on its tenth anniversary and considered whether Sarbanes-Oxley's legacy might …

Property Lost In Translation, Abraham Bell, Gideon Parchomovsky

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The world is full of localized, non-standard property regimes that co-exist alongside state property laws. This Article provides the first comprehensive look at the phenomenon of localized property systems, and the difficulties that necessarily attend the translation of localized property rights.

Rather than survey the numerous localized property systems in the world, this Article explores the common features of the interaction between localized and state property systems. All localized property systems entail translation costs with the wider state property systems around them. Translation costs result from incompatibilities, as well as information and enforcement costs. Focusing on translation costs, the Article …

When Sommers Are Winters: Do Blanks Denote Revocability?, Wendy G. Gerzog

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In Sommers, ruling on both parties’ motions for partial summary judgment, the Tax Court dealt with claims of issue preclusion and collateral estoppel, equitable apportionment, the completion of gifts of limited liability company interests, and retained powers that would cause estate tax inclusion.

Two aspects of Sommers held particular interest for me. The first is that the parties appear to be arguing their opponent’s conventional position. The second is that the court grappled with whether the blanks left in the gift documents were immaterial to gift completion; however, the court did not address whether the decedent’s completed gifts qualified for …

Rabban's Law's History, Herbert J. Hovenkamp

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This is a brief review of David Rabban's new book: Law's History: American Legal Thought and the Transatlantic Turn to History (Cambridge, 2013).

The Modern Corporation Magnified: Managerial Accountability In Financial Services Holding Companies, Anita Krug

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This Article first recalls the primary contours of Adolf Berle and Gardiner Means’s acclaimed observations regarding the separation of ownership and control in the “modern corporation,” as well as their conclusions about the implications of those observations for the doctrine of shareholder primacy. Second, the Article describes how the activities of FSHCs generally differ from what we think corporations do and, certainly, from what Berle and Means conceived of as the purpose of corporations or, indeed, any business enterprise. Third, this Article articulates how those business activities render more acute the problem of the separation of ownership and control that …

Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse

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This is a chapter in a book, Constitution 3.0: Freedom and Technological Change, edited by Jeffrey Rosen and Benjamin Wittes and published by Brookings. It considers whether likely advances in neuroscience will fundamentally alter our conceptions of human agency, of what it means to be a person, and of responsibility for action. I argue that neuroscience poses no such radical threat now and in the immediate future and it is unlikely ever to pose such a threat unless it or other sciences decisively resolve the mind-body problem. I suggest that until that happens, neuroscience might contribute to the reform of …

Poisoning The Next Apple? The America Invents Act And Individual Inventors, David S. Abrams, R. Polk Wagner

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The Leahy-Smith America Invents Act, the most significant patent law reform effort in two generations, has a dark side: It seems likely to decrease the patenting behavior of small inventors, a category which occupies special significance in American innovation history. In this paper we empirically predict the effects of the major change in the law: a shift in the patent priority rules from the United States’ traditional “first-to-invent” system to the predominant “first-to-file” system. While there has been some theoretical work on this topic, we use the Canadian experience with a similar change as a natural experiment to shed …

Criminal (In)Justice And Democracy In America, Stephanos Bibas

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This essay responds to Nicola Lacey’s review of my recent book The Machinery of Criminal Justice (Oxford Univ. Press 2012). Lacey entirely overlooks the book’s fundamental distinction between making criminal justice policy wholesale and adjudicating deserved punishment at the retail level, in individual cases, which is quite consistent with keeping but tempering rules. She also undervalues America’s deep commitments to federalism, localism, and democratic self-government and overlooks the related problem of agency costs in criminal justice. Her top-down approach colors her desire to pursue equality judicially, to the exclusion of the political branches. Finally, Lacey denigrates the legitimate roles of …

Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp

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The Ninth Circuit may soon consider whether challenges to antitrust activity that occurs abroad must invariably be addressed under the rule of reason, which will make criminal prosecution difficult or impossible.

When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of …

The Classical American State And The Regulation Of Morals, Herbert J. Hovenkamp

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The United States has a strong tradition of state regulation that stretches back to the Commonwealth ideal of Revolutionary times and grew steadily throughout the nineteenth century. But regulation also had more than its share of critics. A core principle of Jacksonian democracy was that too much regulation was for the benefit of special interests, mainly wealthier and propertied classes. The ratification of the Fourteenth Amendment after the Civil War provided the lever that laissez faire legal writers used to make a more coherent Constitutional case against increasing regulation. How much they actually succeeded has always been subject to dispute. …

Comments On Maryland V. King In 'U.S. Supreme Court To Hear Arguments Over Md. Dna Case: Justices' Decision Will Have National Implications On Future Crime-Fighting Procedures', Colin Starger

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No abstract provided.

From Roach Powder To Radical Humanism: Professor Derrick Bell's 'Critical' Constitutional Pedagogy, Vinay Harpalani

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This essay is a tribute to the late Professor Derrick Bell, who passed away on October 5, 2011. The author was the Derrick Bell Fellow at New York University School of Law in 2009-10 and assisted Professor Bell in teaching his constitutional law courses. The essay discusses Professor Bell's 'critical' constitutional and life pedagogy, by giving illustrations from Professor Bell's classes and anecdotes from several of his former students. It highlights not only Professor Bell's comprehensive approach to constitutional law, but also the "radical humanism" he brought to teaching and mentoring students.

Copyright Infringement Markets, Shyamkrishna Balganesh

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Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement — that copyright law simultaneously grants authors in order to render its exclusive rights operational — has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright law and policy rarely ever consider the possibility of an acquisition or investment market emerging for actionable copyright claims, and the advantages that such a market might hold for copyright’s …

Gandhi And Copyright Pragmatism, Shyamkrishna Balganesh

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Mahatma Gandhi is revered the world over for his views on freedom and non-violence, ideas that he deployed with great success during India’s freedom struggle. As a thinker, he is commonly believed to have been a moral perfectionist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with the institution of copyright law during his lifetime — as a writer, editor, and publisher — his approach routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced, internal understanding of the institution and its conflicting normative goals, Gandhi’s thinking …

Bulk Misdemeanor Justice, Stephanos Bibas

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This short essay responds to Alexandra Natapoff’s article Misdemeanors, which shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. The prime culprit in Natapoff’s story is the hidden, informal discretion that police officers enjoy to arrest, charge, and effect convictions, abetted by prosecutors’ and judges’ abdication and defense counsel’s absence or impotence. The roots of the problem she identifies, I argue, go all the way down to the system’s professionalization and mechanization. Given the magnitude of the problem, Natapoff’s solutions are surprisingly half-hearted, masking the deeper structural problems that demand …

Economic And Legal Arguments In Ppl V. Commissioner, Michael S. Knoll

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In late February 2013, the U.S. Supreme Court will hear oral argument in PPL Corp. v. Commissioner. The Court took that case, which involves a claim by a U.S. corporation for foreign tax credits for taxes paid in accordance with the 1997 U.K. Windfall Profit Tax Act, in order to resolve a conflict between the Third Circuit, which denied the credit in PPL, and the Fifth Circuit, which allowed the credit in Entergy Corp. v. Commissioner. Nominally, the U.K. Act imposed a tax on recently privatized regulated companies of 23 percent of the difference between their estimated …

Immigration, Sovereignty, And The Constitution Of Foreignness, Matthew Lindsay

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It is a central premise of modern American immigration law that immigrants, by virtue of their non-citizenship, are properly subject to an extra-constitutional regulatory authority that is inherent in national sovereignty and buffered against judicial review. The Supreme Court first posited this constitutionally exceptional authority, which is commonly known as the “plenary power doctrine,” in the 1889 Chinese Exclusion Case. There, the Court reconstructed the federal immigration power from a form of commercial regulation rooted in Congress’s commerce power, to an instrument of national self-defense against invading hordes of economically and racially degraded foreigners.

Today, generations after the United States …

Wimmer Wins Flp Annual Exclusions, Wendy G. Gerzog

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In Wimmer, the Tax Court held that the income stream from a taxpayer’s gifts of family limited partnership interests was eligible for the annual exclusion. By comparing the income interest in the partnership’s dividend paying marketable securities to the income interest in a trust, the court made Wimmer a winner. But does the opinion logically lead to that conclusion?

The Reality Of Moral Imperatives In Liberal Religion, Howard Lesnick

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This paper uses a classic one-liner attributed to Dostoyoevski’s Ivan Karamozov, "Without God everything is permitted," to explore some differences between what I term traditional and liberal religion. The expansive connotations and implications of Ivan’s words are grounded in the historic association of wrongfulness and punishment, and in a reaction against the late modern challenge to the inexorability of that association, whether in liberal religion or in secular moral thought. The paper argues that, with its full import understood, Ivan’s claim begs critical questions of the meaning and source of compulsion and choice, and of knowledge and belief regarding the …

Two Models Of Interest Arbitration, Martin H. Malin

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Most states prohibit public employees from striking and the federal government makes a strike by a federal employee a felony. Many public employee labor relations acts give organized employees a right to arbitrate when their union and employer are unable to reach agreement on the terms of a contract. Much discussion of such interest arbitration schemes has focused on whether the process inhibits bargaining (the chilling effect) or is habit forming (the narcotic effect). These discussions contrast the use of traditional interest arbitration, where the arbitrator may award any outcome that falls between the parties’ final offers, with final offer …

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

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It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes?

This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because …

A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger

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After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”

This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how …

Restrain “Risky Business”: Treat High-Risk Private Security Contractors As Inherently Governmental, Charles Tiefer

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Should Congress limit private security contractors ("PSCs") in wartime by declaring that high-risk activities are "inherently governmental"? In government contracting law, private contractors are not permitted to conduct activities deemed inherently governmental. As a result, only governmental actors may perform those functions. The role of PSCs in war zones raises a number of questions as to where the line exists, in determining what is, or is not, within this classification. Traditionally, the government draws the line at combat and combat-related activities—only these functions are inherently governmental. This Article argues that the line should instead be drawn at "high-risk" activities, which …

It's Not Just Name Calling, Kenneth Lasson

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I’m afraid that universities, which like to perceive themselves as places of culture in a chaotic world, are not quite that wonderful. Of course, some are better than others; not all of them are hotbeds of radical turmoil, but a disturbing number have come to be focal points of loud and strident opposition to the state of Israel.

Although the volume of overt antisemitic acts may have in fact declined over the past few years, there has been a significant increase in anti-Zionist rhetoric and activity on campuses around the country and around the world. The two concepts are not …

Patents At The Supreme Court: It Could Have Been Worse, Gregory Dolin

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In the last few years in particular, the Court has expanded the zone of exclusion from patent eligibility, limited the availability of injunctive relief for patentees whose patents have been adjudged to be valid and infringed, and broadened the scope of the patent exhaustion doctrine. To be sure, not all of the Supreme Court’s decisions were “anti-patent.” Nonetheless, the overall trajectory of the Court’s patent jurisprudence has been toward a narrower set of patent rights. Thus, there was significant trepidation in the patent bar and the academy when the Supreme Court decided to hear three patent cases in the OT …